Taueki v Police

[2012] NZHC 3538

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-454-16 [2012] NZHC 3538

BETWEEN  PHILIP DEAN TAUEKI Appellant

ANDPOLICE Respondent

Hearing:         30 October 2012

Counsel:         S J Price for Appellant

M J Ferrier for Respondent

Judgment:      19 December 2012

JUDGMENT OF THE HON JUSTICE KÓS

[1]      This appeal concerns an argument.

[2]      The  appellant,  Mr  Taueki,  arrived  one  Sunday  morning  at  the  Lake Horowhenua  Domain.    His  purpose  was  to  protest  the  conduct  of  a  surf  club paddling regatta on the lake.   His principal objection was that the event needed permits from the Domain Board.   These had not been obtained.   The argument escalated.   In the end Mr Taueki was arrested for disorderly behaviour.   He was convicted, and now appeals.

Background

[3]      Lake Horowhenua is a shallow lake lying on the edge of sand dunes between Levin and the sea.  The local iwi are the Muaupoko.  They still own the lake bed. They were defeated in heavy fighting with Ngati Toa in that locality nearly 200 years ago.  Two island pas were destroyed.  Many died.  What happened is described in the

report of the Horowhenua Commission, in 1896:

TAUEKI v POLICE HC WN CRI 2012-454-16 [19 December 2012]

[The Horowhenua Block] was, prior to, and at the time of the arrival of NgātiToa and NgātiRaukawa Tribes from the north, inhabited by the Muaupoko Tribe.   In the course of time the Muaupoko were almost exterminated by those tribes, and the remnant of the Muaupoko were driven either into the vastness of the hills, or to take refuge with the Whanganui or other tribes.1

This case shows the scars of that battle remain livid today.

[4]      Mr  Taueki  is  a  member  of  Muaupoko.    The  evidence  is  that  he  is  a descendent of Tauheke, paramount chief of that tribe, who signed the Treaty of Waitangi.  As one of the owners of the lake bed, and a nearby resident, Mr Taueki takes responsibility as kaitiaki of the lake.   Trustees representing the landowners appear also to have appointed him as some sort of warden.  It is clear by reason of his ancestry in particular, he feels a deep spiritual connection to the lake and its hinterland.  It is clear, too, that for some time he has been agitating publicly about contamination of the lake by nutrients and other run-off.  It is something plainly he feels very deep concern about.

[5]      The lake bed, along with some land adjacent, is owned by the Muaupoko iwi including Mr Taueki.  As the Court of Appeal has noted recently, in dealing with another  case  concerning  Mr Taueki,2   s  18(2)  of  the  Reserves  and  Other  Lands Disposal Act 1956 declared the bed of the lake, its islands and a strip of land one chain in width around the original margin of the lake to be “and to have always been owned by the Maori owners,” i.e. the Muaupoko iwi.  These lands had since 1898

been vested in trustees appointed by the Maori Land Court in trust for the Maori owners.3   Some of that land was then purchased by the Crown to create a park.  The Horowhenua Lake Act 1905 declared the lake to be a public recreation reserve under the control of a Domain Board.  It preserved fishing and other rights of the Maori owners over the lake and the Hokio Stream, which is the lake’s sole outflow. Differences then arose as to ownership status.  The 1956 Act records the reaching of

agreement on those questions and effected various declarations.  The lands referred to

1      James C Martin, R Bush and J C McKerrow Horowhenua Commission Report [1896] 1 AJHR G2 at 4.

2      Taueki v R [2012] NZCA 428, at [5].

3      The Court of Appeal pointed out that the Maori Land Court’s order was made in 1951, although

trustees had first been appointed in 1898.

earlier, along with the park, were declared to be “public domain”.4     The Minister of Conservation  was  to  appoint  members  of  the  Horowhenua  Lake  Domain  Board  to control the domain.  Four members were to come from Muaupoko.5

[6]      Public access to the domain is governed by the Horowhenua Lake Domain

Bylaw 1996.  The Domain (including the lake) is open to the public at all times.6

However no organised meeting or assemblage, sports or games event may be conducted without permit by the Domain Board.7   Nor may any motorised boats use the lake without prior written consent of the Board.8   Breach of a by-law constitutes an offence, and generates liability to the penalty prescribed in s 104 of the Reserves Act 1977.9

A regatta

[7]      On Sunday 9 October 2011 a paddling regatta had been organised by the local Levin Waiterere Surf Life Saving Club.  A number of competitors and their boats were on the Lake Horowhenua Domain.   Others were in and on the water. Competitors and their families were also milling around the Domain itself.   Some were preparing their boats.  Others were watching events on the lake.

[8]      The paddling event had not been the subject of prior permit by the Domain Board.  Nor had a permit for the powered craft involved in the regatta been obtained. The organiser, Mr Tate, is a senior constable.   He conceded the absence of these permits  under  cross-examination.    Subsequent  events  have  been  organised  with Board permits.  The Judge at first instance accepted that the organisers “may have been breaking a bylaw perhaps”.   But he did not think it relevant to Mr Taueki’s

culpability.

4      Section 18(5).

5      Section 18(7) and (8).

6      Bylaw 2.

7      Bylaw 14(1).

8      Bylaw 19(3).

9      Bylaw 21. A fine of up to $250.

Mr Taueki arrives, by car

[9]      At about 9.45 am that Sunday morning Mr Taueki’s Mercedes Benz motor car  was  seen  driving  across  the  domain  grass,  towards  the  lakeshore.    It  was travelling at some speed, veered twice and stopped very close to Mr Franklin, the chief reporter for the Horowhenua Chronicle.  The car stopped perhaps a foot away from  him.    Mr  Franklin  thought  it  was  six  to  eight  inches.    Estimates  as  to Mr Taueki’s speed varied.  Mr Tate thought Mr Taueki would have been going about

70 kilometres an hour when he started to cross the grass.  Another witness, District

Councillor Murray, thought he was going “a little too quickly”.

An argument ensues

[10]     When Mr Taueki jumped out of his car, he started to upbraid Mr Franklin. Mr Franklin referred him to the event organiser, Mr Tate.   This confrontation is captured on a videotape record made by a Mr Hoskins.   There is another second version, recorded by Mr Murray on his cellphone.  The whole incident is over in two and a half minutes.

[11]     The event organiser, Mr Tate went over to speak to Mr Taueki.  Mr Taueki is seen and heard to speak to him vehemently.  His behaviour is ill-mannered, but that does not make it disorderly.  His behaviour was not threatening, in the sense that any of those he spoke to appeared to back away, or appeared to be fearful.  Mr Tate in fact  presses  forward  during  the  conversation;  Mr Taueki  tends  to  back  away. Mr Tate said in evidence he thought he might be hit.  That is not my perception of the interaction caught on video.   For most of the time Mr Tate is standing there arguing with Mr Taueki, with his hands in his pockets.  Mr Murray recalled that very thing when giving evidence.   At one point Mr Taueki headed towards the boats drawn up at the edge of the lake.  The others followed him.  But nothing happened apart from continued argument.

[12]     Mr Steven Price, counsel for Mr Taueki, submitted that if the volume of the video were turned down, it would be difficult to describe Mr Taueki’s actions as disorderly.  I agree.

[13]     The essential content of Mr Taueki’s tirade related to his objection to the

event occurring at all.  Here is an excerpt from the recording:

Taueki:     You have no permission to be here, you need a permit. You put a boat in there and see what happens.

Tate:        What are you going to do, are you threatening me?

Taueki:     This is private land.  I am telling you if you put a boat on it it’s

illegal. Where are you going to wash the boats down? Tate:     I’ve got a hose over there and detergent.

Taueki:     I don’t care, it’s illegal to wash your boats down.

Tate:        You have no authority here. Taueki:     See what happens.

Tate:        You have no authority here. Taueki:     It’s my f***ing land, you idiot.

Tate:        It’s not yours, you don’t own anything.

Taueki:     See what happens if you try. Tate:       The police are going to be here.

And so it goes on, although the language deteriorates considerably.

[14]     Mr Taueki was, by his own admission, in a particularly emotional state.  Two days before the event on Sunday 6 November, his mother had died.  She had been brought back to Levin, and died there.  Her tangi was to be held on the Monday, the day after the paddling event.  The urupa where she was to be interred was not far from the scene of the confrontation.

Mr Taueki leaves and then returns, on foot

[15]     Not shown on the video recordings, but described vividly in the transcript, was Mr Taueki’s departure.  He returned to his car, got in and tried to drive away. But his wheels spun in the mud.  This caused considerable amusement to a number of people present. As Mr Murray put it:

Some of the kids thought it was very amusing actually, given his previous behaviour.

The relevance of this is that it tends to downplay the suggestion that Mr Taueki’s

behaviour previously had been particularly threatening.

[16]     In the end, Mr Taueki had to open the car door, push the car backwards with his right foot while accelerating gently with his left.  No one went to his assistance.

[17]     Between five and fifteen minutes later he returned.   This time on foot.   A second confrontation occurred, this time principally with Councillor Murray.  That confrontation is not recorded on videotape.   It is however the subject of evidence from witnesses.

The argument resumes

[18]     The principal object of the second confrontation was Mr Murray.  There are perhaps three reasons why Mr Taueki picked him out.  First, there is past high feeling between them.  A previous incident at a District Council meeting where they seem almost to have come to blows.  Secondly, Mr Murray is also a member of the Lake Domain Board.   Thirdly, the evidence is that Mr Murray is a descendent of Te Rauparaha, of the Ngāti Toa iwi.   Given the history between Ngāti Toa and Muaupoko, it is plain Mr Taueki views him with considerable reserve.

[19]     Mr Murray’s evidence was that Mr Taueki engaged in “very very mad, very very angry and a lot of threatening type behaviour, you know, sort of sudden jerky movements”. Mr Taueki was swearing at him, continuously, and Mr Murray felt:

Almost like he was sort of just trying to get a rise out of me or get me to fight him or just, really threatening.

He was clear that Mr Taueki was looking for a physical confrontation, rather than a verbal one.  But Mr Murray did not rise to that bait.

[20]     Mr Tate was present also at the second incident.  Mr Tate’s evidence was that

Mr Taueki called Mr Murray a “gutless c**t” and said “come on” in a motion

meaning he wanted to fight him.  He was holding his hands up in a motion gesturing

Mr Murray to come towards him.

[21]     Mr Franklin described Mr Taueki’s behaviour as “very aggressive and very taunting”.   Mr Taueki seemed to be asking Mr Murray “if he wanted a fight or a smack”.  Mr Murray did not react, and “kept his cool basically”.  Mr Franklin said:

There was a lot of abuse going on, it was obviously upsetting the children’s mothers that was [sic] there and a surprised look on the children.  It just, the language was really bad for that situation.

[22]     Mr Taueki in evidence admitted calling Mr Murray a “gutless piece of shit, a coward, a f***ing thief, a liar”, but not the expression noted two paragraphs above. He explained, by way of background, that there had been an incident at a Council meeting where he had called Mr Murray a “gutless coward”.  Mr Murray had then threatened to hit him outside the Council chamber if he repeated the statements.  So Mr Taueki deliberately repeated the statement by the lakeside, to see if Mr Murray would make good that threat:

Q.        So you agree then that you were challenging Mr Murray to a fight?

A.        Well he had challenged me to a fight, Simon, as you’re aware of in that Council building.  Well I said to him on the day was, “Murray, you said to me in the Council building that if I repeated that you’re a gutless coward you would deal to me”.  So what I said to him on the day was, “Mr Murray, I am now repeating to you that you’re a gutless piece of shit. Are you still going to beat me up or threaten to beat me up”, as he did in the Council building.

[23]     Mr Murray “didn’t say anything to him ... and eventually Mr Taueki walked off”. The police arrived shortly later.

The charge

[24]     Mr Taueki was charged under s 4(1)(a) of the Summary Offences Act 1981, that he behaved in a disorderly manner in a public place, namely Lake Horowhenua Domain.

[25]     Section 4(1)(a) of the Act provides as follows:

Offensive behaviour or language

(1)       Every person is liable to a fine not exceeding $1,000 who,—

(a)      in  or  within  view  of  any  public  place,  behaves  in  an offensive or disorderly manner;

[26]     It  is  not  in  issue,  in  this  appeal  at  least,  that  the confrontation  between

Mr Taueki and the other gentlemen occurred in a public place.

[27]     Thus, as Heath J put it in Wakim v Police:10

The fundamental question arising out of Brooker is whether the prosecution has proved beyond reasonable doubt the disruption of the type contemplated in the Supreme Court judgments occurred.

The decision appealed from

[28]     Before summarising the District Court judgment, I will comment briefly on the course of the hearing.  Mr Taueki (who represented himself at trial) wished in defence to cross-examine on the lawfulness of the Surf Club event – the lack of a permit, lack of a permit for powered craft – and broader concerns as to the risk represented by the event to the health of the lake, and the risk represented by the lake (which is seriously polluted) to the health of participants.   He sought to advance evidence both in cross-examination and himself in chief about the background to the conflict, his authority as kaitiaki and warden, and the other matters just mentioned.

[29]     Clearly this tried the patience of the Judge. At one point he said:

Mr Taueki, I come back to this, let’s assume just for the sake of an argument that the senior constable and the surf club had breached every law in the country, it’s irrelevant to the charges which you face.

Elsewhere the Judge said:

I understand what you believe but the fact of the matter is that even if Senior

Constable Tate is a mass murderer it is irrelevant to the charges you face.

Later the Judge said:

10     Wakim v Police (2011) 9 HRNZ 318 at [31].

Mr Taueki ... I have already made it clear to you this morning that I don’t care what ... crimes or other miscreant things have been done by the witnesses, what is relevant is what you are charged with.

[30]     Mr Taueki would not take no for an answer.   The Judge’s patience was extended beyond endurance.  He started to move Mr Taueki on.  At various points the Judge interjected, “Irrelevant” after a question from Mr Taueki.  He directed the witness being cross-examined not to answer those questions.  He warned Mr Taueki that he was “getting very close to being in contempt”.  Mr Taueki attempted to cross- examine Mr Murray about the prior incident between them at the Council meeting. The Judge interjected:

Court:             Mr Taueki, this is a trial that you are the defendant in, this is not a place for you to grandstand about whatever it is that you may feel a grievance about.  If you do not stick to the point I will stop you from asking any further questions.  You have one more chance.

MrTaueki:       Excuse   me   Judge,   this   witness   actually   stepped   the defendant [i.e. Mr Taueki] outside the Council meeting, it’s recorded in a public meeting.

Court:             So  what?    I  don’t  care.    That’s  not  the  matter  ...  it’s irrelevant.   What’s it got to do with the two charges you face?

[31]     After  the  evidence  of  Messrs  Tate,  Franklin  and  Murray  was  taken, Mr Taueki gave evidence on his own behalf.  This proceeded in an unusual fashion. Mr Taueki  asked  the  Judge’s  assistance,  noting  “I would  like  to  tell  you  what happened on the day, from my point of view, and I would like to produce my defence exhibits as evidence.”  What in fact happened, after Mr Taueki was sworn, was that the Judge asked him a series of questions.  The Judge sought to elicit Mr Taueki’s evidence “as to whether the behaviour which was clearly seen on the video took place or not?”   That is perhaps a slightly unusual question, if the behaviour was “clearly seen” in the video.   It all ended up in a rather unsatisfactory dialogue in which nominally the Judge was asking questions and Mr Taueki was trying to give evidence of context and background which the Judge (as nominal questioner) did not really want to hear.  It might, I think, have been better if the appellant had simply been permitted to make a sworn statement of his own choosing, under direction of the Judge as to relevance and admissibility, and then been cross-examined by the prosecuting sergeant.

[32]     Turning now to the decision itself, the Judge first discussed the charge of dangerous driving under s 35(1)(b) of the Land Transport Act 1998.  The specific charge was that Mr Taueki had driven his motor vehicle in a manner which was dangerous to Mr Franklin.   It was, the Judge noted, not as expansive a charge as could have been laid under that provision.  It required a finding, in those terms, that the driving was actually dangerous.   The Judge concluded that inasmuch as the vehicle had stopped for Mr Franklin, it could not have said to have been dangerous to Mr Franklin.

[33]     Turning to the main charge, of disorderly behaviour, the Judge cited from the leading Supreme Court decision, Brooker v Police.11   After doing so, the Judge said this:12

... [He] accepts that he was engaged in a taunting situation with Mr Murray. But it goes beyond those circumstances because disorderly behaviour can be caused by a car just as easily as it can be by the individual himself personally and the manner in which Mr Taueki drove into the domain and screeched to a halt shortly before Mr Franklin in itself can be seen as being disorderly behaviour.

Having had the benefit of the video and seen part of the behaviour objected to,  being  in  the  middle  of  his  arrival  and  later  his  confrontation  with Mr Murray, I am left in no doubt and certainly well beyond reasonable doubt that Mr Taueki’s behaviour was disorderly.

In his submissions he has raised the question of this being a matter of protest and  he  refers  to  the  Supreme  Court  making  it  clear  that  a  charge  of disorderly behaviour should not be used to prevent people using their right to freedom of speech or to protest.  Now what Mr Taueki’s evidence has been directed to is not a protest in terms of rights undertaken supposedly an upholding of his property rights, it is not a protest in the sense that was being discussed in Brooker.  He was protesting only as to what he felt should be happening at the lake.  He could have done that in an orderly way.  In fact, he did it in a disorderly manner and the charge as to disorderly behaviour is made out.

[34]     At  a  separate  sentencing  hearing,  three  weeks  later,  the  Judge  fined

Mr Taueki $500 and ordered him to pay Court costs of $132.89.

11     Brooker v Police [2007] NZSC 30; [2007] 3 NZLR 91.

12     Police v Taueki DC Levin CRI 2011-031-1833, 28 June 2012 at [23]–[25].

The appeal

[35]     The appeal is one against both conviction and sentence. The two key grounds advanced by the appellant in his notice of appeal were that:

(a)      the Judge had wrongly ruled inadmissible evidence relevant to the defence – in particular as to Mr Taueki’s belief in the unlawfulness of the paddling event; and

(b)      no conviction could be entered without proof that the defendant’s

conduct had created a substantial disturbance to public order.

[36]     In  addition  a  third  issue  was  developed  on  appeal,  which  related  to  the Judge’s conclusion that disorderly behaviour could be caused not only by an individual personally, but also by his use of a motor vehicle.

Issues on appeal

[37]     There are three issues therefore that require consideration on this appeal:

(a)      Issue 1: Was Mr Taueki’s belief as to the unlawfulness of the paddling event relevant?

(b)      Issue 2: Could Mr Taueki’s driving be considered part of the actus

reus of disorderly behaviour?

(c)       Issue 3: Was Mr Taueki’s behaviour disorderly?

Issue 1: Was Mr Taueki’s belief as to the unlawfulness of the paddling event relevant?

[38]     I have  set  out  at  [28]  to  [31]  the  sequence  in  which  the  District  Court proceeding was conducted.

[39]     Mr  Price  submitted  that   the   categoric  rulings   of  the  Judge  on   the inadmissibility of contextual material that Mr Taueki sought to advance, both in cross-examination and evidence-in-chief, could not be right.  As he submitted, if a person is “intervening to prevent or protest against illegal conduct as it is happening

– that is to prevent the disorder of illegality – this must bear on the question of whether  that  person’s  behaviour  is  itself  disorderly.”    The  fact  that  a  person genuinely intended to head off a breach of the law (particularly when that view was correct) must, Mr Price said, be a contextual circumstance to be taken into account in the assessment of disorderly behaviour.

[40]     Moreover, it was relevant to the character of the speech in question.   It represented a serious exercise of freedom of speech, requiring a greater than usual demonstration of justification to penalise, in terms of the Supreme Court decision in Brooker v Police.13

[41]     For the respondent, Mr Matthew Ferrier accepted that Mr Taueki was entitled to lay a “foundation for genuineness” in relation to his protest.   But, as Brooker, Morse14 and Wakim15 all show, it is not necessary to analyse extensively the underlying causes for the protest being engaged in, once it is established that the protest was at least a genuine one.  Moreover, Mr Ferrier submitted that none of this evidence was relevant to or excused the second incident. That, in his submission,

crossed clearly the threshold for disorderly behaviour.

Discussion

[42]     I can be brief.

[43]     I  agree  with  counsel  that  a  criminal  defendant  accused  of  disorderly behaviour is entitled to lead evidence and to cross-examine, to an extent, on the circumstances giving rise to the expression of information or opinion forming part of the alleged disorderly behaviour.  In this case the unlawfulness of the regatta event

was a relevant material consideration.  Mr Taueki should have been allowed to cross-

13     Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91.

14     Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1.

15     Wakim v Police (2011) 9 HRNZ 318.

examine on it and lead evidence of his own on that topic.   Likewise, to a lesser extent, the broader contextual issues of the history of Muaupoko’s relationship with that area, and (to a very limited degree) the potential health risk to participants in the regatta.

[44]     This is not, however, a carte blanche for context.  Contextual material may be relevant, but a Judge is entitled to place reasonable limits on the extent to which that is the subject of cross-examination and evidence-in-chief.  If that were not so, then the criminal process might be derailed, and the Court become a soapbox for oratory of now marginal relevance.

[45]     Having said that, however, I am satisfied that Mr Taueki was not in fact

prejudiced by the Judge’s rulings. There are two reasons for that.

[46]     The first is that Mr Taueki essentially ignored those rulings.  By the time the Judge  eventually  stopped  him,  he  was  in  no  doubt  as  to  what  had  motivated Mr Taueki.  There is no suggestion in the judgment that he considered Mr Taueki’s motivation other than genuine.

[47]     Secondly, I am on appeal in as good a position as the Judge to form a view on the relevance of the evidence advanced by Mr Taueki, including the documentary exhibits that he presented.  I accept that Mr Taueki’s protest in relation to the conduct of the event without permits, and the potential health risk to participants, was genuinely motivated.

Conclusion

[48]     The answer to Issue 1 is, therefore, “yes”.  The Judge’s approach to evidence was, at first sight, too restrictive as to relevance and admissibility.  But Mr Taueki was not in the end prejudiced by the rulings made.

Issue 2: Could Mr Taueki’s driving be considered part of the actus reus of

disorderly behaviour?

[49]     As I have recorded at [33] the Judge observed that disorderly behaviour “can be caused by a car just as easily as it can be by the individual himself personally”. The Judge saw Mr Taueki’s driving as part of the disorderly behaviour.  It was one of three factors (the other two being the two confrontations) which led to the Judge concluding that Mr Taueki’s behaviour was disorderly.   It is not clear whether the Judge would have found the offence proved if it concerned the driving alone.  By the same token, however, it is clear that the Judge would have found the behaviour disorderly regardless of the driving.

[50]     Mr Price submits disorderly behaviour only concerns personal conduct, and does not extend to driving.  This, he said, is clear from the language in s 4(1) itself. It relates to behaviour “within view” of a public place.  It would be odd, Mr Price submits, for this to encompass driving.  Can one drive offensively?  He notes that there does not appear to be a single reported case in which disorderly behaviour has covered driving.   It might, he said include using camera, but that still involves personal conduct.  The camera example is drawn from Vigon v Director of Public

Prosecutions.16   That was a case in which a market trader had set up a video camera

in the changing room at his swimwear concession.   That was held to amount to

“insulting behaviour” within s 5 of the Public Order Act 1986 (UK).

[51]     Mr Ferrier submits that driving would not ordinarily be per se disorderly behaviour (even if conducted erratically).  But it can form part of the actus reus of an entire incident altogether comprising disorderly behaviour.

Discussion

[52]     Again, I can be brief.

[53]     Although s 4(1)(b) and (c), and s 4(2) are concerned with the use of words, s 4(1)(a) is not thus limited.  Intelligible communication expressing information or

16     Vigon v Director of Public Prosecutions [1998] Crim LR 289 (QB).

opinion is at one end of the spectrum, and attracts a higher threshold for criminalisation.17   At the other end, however, can be non-verbal communication, and even conduct.  In Thompson v Police18  Ms Thompson’s behaviour was, at its most charitable, communication with cats.  She was trying to attract them, as she wished to feed them.  That was held to be disorderly behaviour, because it reached a level of intolerable  intrusion  on  the  rights  of  others.    Had  her  behaviour,  instead,  been

unintelligible gibberish, or mere noise, substantially disturbing public order (in the sense of substantially impairing the enjoyment of that place), it would still have been disorderly behaviour.

[54]   Disorderly behaviour, whether verbal or otherwise, may be undertaken indirectly, by media other than direct use of the human voice.  In Wakim v Police19 for instance the disturbance was by the use of a loudspeaker to disrupt a tennis tournament at which an Israeli competitor was playing.  Ms Wakim was arrested for using a megaphone, “projecting a shrill cry and making a loud noise, by moving her tongue”.20    That case was held not to amount to disorderly behaviour, but it was perhaps a marginal call.

[55]     The fact that part of the alleged disorderly behaviour in this case involved use of a motor vehicle does not take it outside the scope of “behaviour” for the purposes of s 4(1)(a).  If there was nothing more to the offence than the driving itself, then other statutory provisions should be used.  But if that driving forms part of a course of behaviour, some of which is non-verbal and some of which is verbal, then it seems to me it may properly be the subject of a s 4(1)(a) charge.

Conclusion

[56]     The answer to Issue 2 is “yes”.

17 See [68] below.

18     Thompson v Police [2012] NZHC 2234.

19     Wakim v Police (2011) 9 HRNZ 318.

Issue 3: Was Mr Taueki’s behaviour disorderly?

[57]     This is the principal issue for determination in this appeal.

The law

[58]     The leading Supreme Court decision on s 4(1)(a) is Brooker v Police.21   The other leading Supreme Court decision on s 4(1)(a) Morse v Police22  concerns the other limb of s 4(1)(a), offensive behaviour.  This judgment will, therefore, focus on the Brooker decision.

[59]     In that case, Mr Brooker took the view that a female police constable had acted unfairly towards him in obtaining and executing a search warrant.  He decided to protest against her conduct.   He ascertained her address, tried to contact her at work, and then went to her home at 9.20 am on the Tuesday morning.  He knew that she had been on night duty, and was likely to be present at her house.  He knocked on her front door.  There was a brief conversation, and she told him to “piss off”.  He leaned a large placard against her front fence reading “no more bogus warrants”.  He then picked up his guitar and began to sing protest songs (whether traditional or created on the spot is not clear).  His singing could have been heard by neighbours, but there was no evidence that any heard him, other than the constable herself.  The constable  said  that  she  felt  intimidated,  and  she  called  her  police  station  for assistance.

[60]     Mr Brooker was charged initially with loitering with intent to intimidate.23

But  the  charge  was  then  amended  to  one  of  behaving  in  a  disorderly  manner, contrary to s 4(1)(a).  He was convicted in the District Court, and appeals to the High Court and Court of Appeal were unavailing.  His appeal to the Supreme Court was, however, successful.  The majority in the result (Elias CJ, Blanchard and Tipping JJ)

were essentially joined as to reasoning (if not result) by McGrath J.

21     Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91.

22     Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1.

23     Summary Offences Act 1981, s 21(1)(d).

[61]     The judgment in Brooker has been most usefully analysed by Priestley J in Thompson v Police.24    As Priestley J noted, the majority opinions in that decision concentrated on the need for there to be a clear focus on the public element of the offence.  It is the “disruption of public order” (as Elias CJ put it)25 that anchors the provision.

[62]     As Elias CJ noted,26 restrictions on the right of freedom of expression may be imposed to protect interests such as privacy or residential quiet:

But s 4(1)(a) is not designed for that end. It exists for the purpose of preservation of public order, not to protect privacy or personal sensitivities alone.  Other criminal provisions protect these values to the extent that the legislature has considered necessary.   Section 4(1)(a) of the Summary Offences Act  cannot  be  used  as  a  grab-bag  to  scoop  up  any  behaviour thought to be deserving of condemnation through criminal law, unless the behaviour is disruptive of public order.  To constitute disorderly behaviour under s 4(1)(a) there must be an objective tendency to disrupt public order, by behaviour or because of the effect of words used. Whether behaviour is disorderly is not to be assessed against the sensibilities of individuals to whom the behaviour is directed or who are present to see and hear it, but against its tendency to disrupt public order.

[63]     Blanchard J said:27

Disorderly behaviour is not necessarily offensive in that way [in the sense of being capable of wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person].  It is behaviour which disturbs or violates public order. To fall within s 4(1)(a) it must be behaviour in or within view of a public place which substantially disturbs the normal functioning of life in the environs of that place. It must cause a disturbance of good order which in the particular circumstances of time and place any affected members of the public could not reasonably be expected to endure because of its intensity or its duration or a combination of both those factors.

[64]     As  Blanchard  J  went  on  to  point  out,  whether  behaviour  is  disorderly therefore “depends not only on what the defendant says and does but also upon when and where the behaviour occurs and its effect on the lives of other people”.28

[65]     Tipping J put it this way:29

24     Thompson v Police [2012] NZHC 2234 at [81].

25     Brooker at [38].

26 At [41].

27 At [56].

28 At [57].

... conduct is disorderly must be capable of application both to ordinary cases and to those that are less simple because aspects of the rights and freedoms affirmed by the New Zealand Bill of Rights Act are engaged.  With that in mind I would reformulate earlier tests in the following way.  Conduct in a qualifying location is disorderly if, as a matter of time, place and circumstance, it causes anxiety or disturbance at a level which is beyond what a reasonable citizen should be expected to bear. Unless that is so, the conduct will not warrant the intervention of the criminal law. If it is so, the public has a legitimate interest in proscribing the behaviour, and thereby protecting citizens from it. In this way public order is protected.

[66]     McGrath J’s formulation is not unlike that of Tipping J:30

Infringement of public order necessarily involves a serious interference with community standards of behaviour, in the sense that the behaviour goes beyond what a society respectful of democratic values can be expected to tolerate.  The right to express dissenting opinions concerning official action or policy is central to democratic values. It will be rare that expressions of opinion which have no tendency seriously to upset their audience will be categorised as sufficiently intruding on public order. It is not necessary, however, that the conduct is likely to produce a physical response or other reaction resulting in a breach of the peace before the behaviour may properly be found to be disorderly.   In any particular situation self-discipline, apprehension or the good judgement of affronted persons may control their overt response to a manner of behaviour which, objectively, they should not have to tolerate.

[67]     As Priestley J noted in Thompson, despite the different choice of words, “the

tests formulated by the majority substantially align”.31

[68]     However, as the judgments make clear, where the behaviour involves the exercise  of  a  right  of  expression  (such  expression  being  of  fact  or  opinion,  as opposed to mere noise or nuisance), a higher threshold applies. As Blanchard J put it in Brooker:32

But when the behaviour in question involves an exercise of the right to convey information or express an opinion, which is protected by s 14 of the New  Zealand  Bill  of  Rights  Act  1990,  or  engages  some  other  right guaranteed by that Act there is a further and most important consideration. A  characterisation  of  the  behaviour  of  the  defendant  as  disorderly  then cannot be made without an assessment against the overriding requirement of s 5 of the Bill of Rights that the exercise of any guaranteed right may be subjected only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.  The value protected by the Bill of Rights must be specifically considered and weighed against the

30 At [120].

31     Thompson v Police [2012] NZHC 2234 at [51].

value  of  public  order.    The  court  must  ask  itself  whether  treating  the particular behaviour in the particular circumstances as disorderly constitutes a justified limitation on the defendant’s exercise of the right in question.  As a result, public order will less readily be seen to have been disturbed by conduct which is intended to convey information or express an opinion than by other forms of behaviour.  The manner in which the defendant chose to exercise the right and the time and place are of course relevant to that inquiry.

Application of law to facts

[69]     It is necessary to consider the two incidents to an extent independently.  The first incident forms part of the context of the second, but no more than that.

[70]     In the case of the first incident, Mr Taueki had a point.  The event had not been organised lawfully.   He was, as his counsel Mr Price put it, right about that. There was no permit for the assembly or event.  And there was no permit for the motorised craft on the lake.   Each permit should have been obtained.   To make matters worse, the organiser of the event was a constable.  Present also was a District Councillor and Domain Board member, one of those responsible for management of the lake domain in accordance with the bylaw.  Mr Taueki, was, therefore entitled to express his opinion on that state of affairs, and to express his objection vociferously.

[71]     His language was in some respects ill-chosen.  But taste and decorum are not put at the heart of the Court’s evaluation  under s 4(1)(a).   In any event, some forbearance  is  called  for.    Worse  is  heard  out  of  the  mouths  of  schoolgirls  in shopping malls on Friday evenings, than was heard from Mr Taueki.  And with less cause.

[72]     Mr Taueki was, it is clear, genuinely expressing his opinion (and with some justification in significant respects).  The higher threshold for unlawfulness was thus engaged.   Public order should be less readily seen to have been disturbed in this context than by behaviour which might be characterised as mere boorish boganism.

[73]     As Elias CJ put it in Brooker:33

Behaviour which amounts to intimidation, victimisation, or bullying is disruptive of public order even if no violence is reasonably in prospect. Such behaviour is likely to alarm or be seen as threatening by those present. It is likely to cause others to withdraw from or avoid the place and it is behaviour that inhibits the normal public use of the place.

[74]     As that passage makes clear, the prospect of direct violence is not necessarily requisite to disorderly behaviour.  The behaviour must have a substantial impact on the enjoyment of rights of persons actually affected.  It must inhibit their use of the public place in which the activity takes place, or of private places adjacent thereto, although not necessarily enduringly if the behaviour is intense: eg victimisation, intimidation or bullying.   Mere transitory conduct which does not have that effect will not suffice.

[75]     Here, the behaviour of those attending the regatta does not appear to have been inhibited in any meaningful or substantial way by Mr Taueki’s initial  two minute tirade.  Inasmuch as it was a genuine expression of opinion, relevantly with some justification, and inasmuch as it did not have a substantial inhibiting effect on the enjoyment of the public place by those present, it could not constitute in these circumstances disorderly behaviour.

[76]     I turn now to the second incident.  That is the one involving Mr Murray. As I have noted already, the occurrence of the first incident, a few minutes earlier, is relevant background context to that event.

[77]     On this occasion Mr Taueki’s modus operandi changed.   He deliberately sought out Mr Murray, and the engagement was both direct and personalised.  The Judge, who had the benefit of hearing the four witnesses, was justified in accepting the evidence of the three prosecution witnesses that Mr Taueki’s plain purpose was to pick a fight with Mr Murray.  Although Mr Taueki may have had good reason for an animus against Mr Murray, that does not excuse his conduct.  Behaviour which goes beyond the genuine expression of opinion to instead or additionally amount to provocation to violence in a public place does not call for protection of the law under the New Zealand Bill of Rights Act 1990.   There may be situations where such behaviour can be tolerated, even endorsed, where necessity demands physical intervention for the protection of a physical person or perhaps even the protection of

the physical environment.  Such cases need to be considered on a case by case basis and no general rule can or should be stated.

[78]     I do not however accept that this is such a case, despite Mr Taueki’s concern over the unlawfulness of the event, the potential introduction of further, albeit minor, pollution to an already highly polluted environment, and potential for health risk to participants.  None of that justified physical provocation of the kind manifest in the second incident.   It was intimidatory, and it was bullying.   It was, unlike the first incident, entirely beyond the tolerable range of lawful protest.  That behaviour was precisely the sort of provocation of a breach of the peace which s 4(1)(a) was designed  to criminalise,  and which  cannot be excused under a higher threshold approach under Bill of Rights considerations.

Conclusion

[79]     It follows from this analysis that the Judge was wrong insofar as he found that the first incident was disorderly behaviour.  However the Judge was correct to find that the second incident, involving Mr Taueki and Mr Murray, was disorderly behaviour on Mr Taueki’s part. The answer to Issue 3, therefore, also is “yes”.

Result

[80]     The appeal against conviction is dismissed.

[81]     In the circumstances, it is appropriate to allow the appeal against sentence, and to substitute for the $500 fine imposed by the Judge, a fine instead of $400. That in my view allows appropriately for the more limited unlawful conduct committed by the appellant. The order for Court costs is unaltered.

[82]     I thank counsel for the very high standard of submissions delivered to me.

Stephen Kós J

Solicitors: Crown Solicitor, Wellington for Respondent